GEORGE WILL

July 2, 1994|GEORGE WILL Washington Post Writers Group

The "right of privacy" is popping up all over the place, and some of the early enthusiasts of that right may be wishing it had fewer permutations.

The Constitution does not explicitly mention such a right. However, various provisions of the document, including the guarantees of the free exercise of religion and security from unreasonable searches and seizures, protect zones of privacy. And long before the Supreme Court declared its discovery of a "right of privacy," it was protecting privacy by, for example, overturning a state law that infringed parental rights by requiring children to attend public schools.

Not until 1966 did the court, overturning a Connecticut law restricting contraception, announce that a privacy "right" existed. The court said it pertained to marriage and the family. But soon that right was transformed into an individual right disconnected from marriage and the family. And in 1973 this right became the scythe that mowed down 50 states' abortion laws.

In that decision the court said it was not sure precisely where the privacy right emanated from (perhaps from the 14th or the Ninth Amendments), but it is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."So the zone of privacy included not only the marital bedroom but the abortion room. 'Twas a famous victory for women.

However, today many welfare reform proposals include "family caps," whereby women who become pregnant while on welfare will not receive increased stipends for the new child. And many women's rights advocates say "family caps" unfairly burden women alone for behavior in which men are implicated.

That is not an argument made gracefully by groups who for 20 years have thickened the air with slogans about abortions being a severely individualistic matter. The doctrine made fashionable by articulate feminists - that abortion is a fundamental individual right, grounded in the pure isolation of women unchallengeable in their sovereignty concerning procreation - has left welfare mothers disarmed, rhetorically and legally and politically.

Meanwhile, look who is wading into the health care debate wielding the lengthening sword of the privacy right for conservative purposes. Clint Bolick, director of litigation for the libertarian Institute for Justice, says that any mandatory health care program that limits medical choices and intrudes bureaucracy between individuals and their physicians is incompatible with the privacy right as elaborated in, among other places, abortion decisions. And look whose words he cites.

Justice Blackmun, author of the 1973 Roe vs. Wade decision, said that the idea of liberty entails "freedom from government domination in making the most intimate and personal decisions."In 1983, the court overturned a law requiring abortions to be performed in hospitals, saying that because "abortion is a medical procedure ... the full vindication of the woman's fundamental right requires that her physician be given the room he needs to make his best medical judgment."In 1986, the court overturned various regulations that, in an abortion context, impermissibly intruded on what the court called "the discretion of the pregnant woman's physician."

Now, surely solicitude for privacy rights is not confined to the rights of patients and physicians who want to kill fetuses. There are many other quite "intimate and personal" medical decisions. And in 1992, in the most recent abortion ruling, Justices O'Connor, Kennedy and Souter grounded abortion rights not only in the right to make family decisions, but in something remarkably broad - "the right to physical autonomy."

Interesting words, those, at a moment when Washington is rife with proposals for government to contract the individual's medical self-determination by spawning regulatory agencies to decide what is medically "necessary and appropriate."And speaking of the autonomy of patients and their physicians, the National Taxpayers Union Foundation says the Clintons' health care legislation contains the word "requires" 901 times, "limit" 231 times, "penalty" 111 times, and "ban," "enforce," "fine," "obligation," "prison," "prohibit," "restrict" and "sanction" a total of 251 times.

Last week in a 5-4 decision the court overruled the government of Tigard, Ore., which had made a building permit contingent on the person seeking it giving the city 10 percent of her property for purposes not closely related to any consequences of her building plans. The Fifth Amendment says property shall not be taken "without just compensation."Chief Justice Rehnquist says the Takings Clause is as much a part of the Bill of Rights as the First and 14th Amendments. This ruling bolstered a privacy right the Constitution actually mentions: the property right is a privacy right because it makes possible a sphere of private sovereignty.

Among the dissenters deploring the enhanced status of this privacy right was Blackmun.

Write to George Will at The Washington Post, 1150 15th St. NW, Washington, D.C. 20071.